R v Alfie Muylders

Senior Costs Judge Rowley:

1. This is the appeal of Alexandra Monaghan of counsel in respect of the determining officer’s decision to calculate her graduated fee as a guilty plea fee rather than a cracked trial fee under the Criminal Legal Aid (Remuneration) Regulations 2013, as amended.

2. Counsel appeared on behalf of the defendant Mr Muylders at the Pre Trial Preparation Hearing on 18 November 2024. According to the appeal notice in these proceedings, Mr Muylder pleaded guilty to an offence of causing Actual Bodily Harm but pleaded not guilty to burglary.

3. It appears that the Crown wished to consider the acceptability of the pleas and so, as well as fixing a trial date of 8 February 2027, the case was listed for a further case management hearing a fortnight later on 2 December 2024. At that hearing, the prosecution offered no evidence in respect of the burglary count.

4. The key provisions of the 2013 Regulations are contained in Schedule 1 where a “cracked trial” is defined and a guilty plea is defined, in part, as being a case, other than one which can be described as a cracked trial: “cracked trial” means a case on indictment in which – (a) the assisted person enters a plea of not guilty to one or more counts at the first hearing at which he or she enters a plea and – (i) the case does not proceed to trial (whether by reason of pleas of guilty or for other reasons) or the prosecution offers no evidence; and (ii) either – (aa) in respect of one or more counts to which the assisted person pleaded guilty, the assisted person did not so plead at the first hearing at which he or she entered a plea; or (bb) in respect of one or more counts which did not proceed, the prosecution did not, before or at the first hearing at which the assisted person entered a plea, declare an intention of not proceeding with them; or (b) the case is listed for trial without a hearing at which the assisted person enters a plea;

5. On the face of it, this is clearly a cracked trial fee case. The defendant entered a plea of not guilty to one of the offences and the Crown subsequently decided not to proceed with the prosecution of that offence.

6. The determining officer rightly considered that limb (b) did not apply because the defendant had entered a plea. For reasons that are not at all clear, she then goes on to quote the cases of R v Barzey and R v Shah which both relate to limb (b) cases. In particular, they are cases where, for various administrative reasons, the defendant was unable to be arraigned even though they would have pleaded not guilty if they had been able to do so.

7. The determining officer specifically quotes Costs Judge Whalan’s decision in R v Shah where he refers to Barzey and to the need for “a genuine and settled intention to proceed to trial at the PTPH, before a collective change of direction…” From this, the determining officer says that: “until the hearing on 2/12/24 there could be no genuine settled intent to proceed to trial because of the need to await the outcome of the prosecution’s request for time to consider whether or not to accept the pleas entered on 18/11/24.”

8. The determining officer then concludes that the case does not fit within either (a)(ii)(aa) (a change to a guilty plea) or (a)(ii)(bb) since: “on 2/12/24 the prosecution indicated an intention not to proceed, never having previously given an indication of any intention not to proceed with any count to which the defendant entered a not guilty plea.”

9. It seems to me that the determining officer has plainly fallen into error here. It may be the surfeit of negatives in the quotation at paragraph 8 but, taken as it is written, it is correct that (a) the prosecution indicated an intention not to proceed and (b) had not done so previously in respect of the burglary count. However, this means that the facts of this case squarely fall within (a)(ii)(bb) rather than outside it, contrary to the determining officer’s conclusion.

10. The rationale of a cracked trial fee is that the defendant starts off intending to defend at least one count on the indictment but then either changes their mind or the prosecution decides to abandon the prosecution. It is entirely clear that the second of these options has happened here. There is no need for anything further to be demonstrated by the advocate (or litigator) than a not guilty plea followed by the prosecution deciding to offer no evidence.

11. There is certainly no need in these circumstances for some form of settled will to be established. That is only relevant to limb (b) cases where there has been no plea taken. Once the defendant has been arraigned the prosecution’s intention to proceed has been established for the purposes of the 2013 Regulations.

12. Accordingly this appeal succeeds and the appellant, who asked for this appeal to be determined without a hearing, is entitled to her costs of the appeal as a result. Postscript

13. The determining officer deals with the question of the trial advocate versus instructed advocate at some length in her written reasons. It does not appear that this is a matter I need to deal with on the appeal but if that is incorrect, the parties should let me know and I will give some directions as to future conduct of that element.